The probate attorneys at Penrose Chun & Gorman LLP provide experienced and efficient representation to clients involved with trust administration in Santa Cruz, Santa Clara, Monterey, and San Benito counties. With over 40 years of experience and a dedicated support staff, we have the capability to assist trustees in administering trusts involving significant assets, numerous beneficiaries, whether individuals or charities, and complex tax issues.
What is a Revocable Living Trust?
A revocable living trust is a legal relationship, memorialized in writing, in which a “settlor” or “trustor” transfers property to another, the “trustee,” who holds such property for the benefit of another, the beneficiary. The settlor is the individual who creates the trust, while the trustee is either an individual or corporation that is tasked with administering the trust. In many cases, the settlor, trustee, and beneficiary are, for a period of time, the same person. On the death of the settlor, a successor trustee takes over as trustee and follows the settlor’s instructions, which are set forth in the trust, concerning the distribution of property to the settlor’s beneficiaries and the payment of taxes and expenses.
A revocable living trust avoids the court-supervised process of probate, which would otherwise be required to transfer assets to a person’s beneficiaries following their death. However, although probate is not required when a trust is in place, trust administration must still occur. For example, assets still have to be identified, collected, and managed pending distribution to the beneficiaries, appraisals of assets have to be made, debts and taxes have to be paid, tax returns may have to be filed, and legal documents must be prepared in connection with the distribution of the trust property to the beneficiaries. These activities are similar to the probate process, however, there is no court involvement, which leads to a faster, less expensive administration process.
The named successor trustee of a trust acts in a fiduciary capacity. As attorneys, our job is to assist successor trustees in carrying out their fiduciary duties as trustee with due care and diligence. These duties include collecting, conserving, managing, and controlling the assets of the trust, sales of trust real property and personal property when required, paying the debts of the trust, paying all taxes due from the trust estate, and distributing the balance of the trust estate to the beneficiaries according to the provisions of the trust.
We assist successor trustees with the preparation of any necessary transfer documents in connection with the distribution of trust property to beneficiaries, as well as documents required to be filed with various county and state agencies. Examples include asset assignments, Small Estate Affidavits, affidavits of death, deeds and Preliminary Change of Ownership Reports, and, where appropriate, Claims for Reassessment Exclusion for Transfers Between Parent and Child. We prepare We also prepare or supervise the preparation of any required accountings, tax returns, and reports to the trust beneficiaries. If court involvement or a court action is necessary, we also represent the successor trustee in that action.
Serving as the trustee of a trust involves many fiduciary duties and responsibilities. It is vital to seek the guidance and representation of an experienced attorney who specializes in trust administration. Contact Penrose Chun & Gorman LLP to schedule a consultation.
The attorneys at Penrose Chun & Gorman LLP provide experienced and efficient representation to clients involved with the probate process in Santa Cruz, Santa Clara, Monterey, and San Benito counties. With over 40 years of experience and a dedicated support staff, we have the capability to assist personal representatives in administering estates of all sizes and involving complex tax issues.
What is Probate?
The term “probate” is derived from the Latin word probatus meaning “to prove.” Probate refers to the court-supervised process of proving the last will and testament of a deceased person, giving effect to the provisions of that will, and distributing the person’s estate according to the terms of the will. If a person died without a will, their estate is distributed according to California’s laws of intestate succession.
The purpose of the probate process is to carry out the deceased person’s intentions, confirm who will serve as the personal representative of the decedent’s estate, protect the interests of creditors and others who may have claims against the estate, and shield the personal representative against possible claims and lawsuits. Legal challenges may occur at any time during this process, and may range from disputes over the validity of a will and the appointment of a personal representative to challenges to the final distribution of the estate.
Probate Process in California Courts
The probate process starts with filing a petition with the court. The petition seeks an order from the court determining the date and place of the decedent’s death, appointing a personal representative of the estate, and ordering the probate of a decedent’s will, if any. A hearing on the petition is normally scheduled approximately thirty days after the petition is filed. Depending on the facts of the case and whether there are any challenges to the will or to the appointment of the personal representative, the hearing may involve the examination of documents and witness testimony.
Once the will is admitted to probate, the authenticity of the will has been “proven” and cannot be attacked except in limited circumstances. Following the hearing “letters testamentary” are issued to the personal representative, who may begin administering the estate. One of the first duties of the personal representative is to prepare and file an inventory and appraisal of all property of the estate.
Notice must be given to creditors regarding the administration of the estate. This notice provides creditors with four months (or longer in some cases) within which to pursue a claim against the estate. It is important to note that the probate process in California takes several months, and the notice and claims period alone can stretch out the probate process to eight months or more, even without any disputes.
After all of the assets have been accounted for and appraised, and all debts and taxes of the estate have been paid, the personal representative petitions the court for a final distribution of the estate to the persons entitled according to the decedent’s will or, if there is no will, California’s laws of intestate succession.
Serving as the personal representative of a decedent’s estate involves many fiduciary duties and responsibilities. It is important to seek the guidance and representation of an experienced probate attorney. Contact Penrose Chun & Gorman LLP to schedule a consultation.
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Steven D. Penrose
Practice Areas: Estate Planning, Estate and Trust Litigation, Business Succession Planning, Probate Litigation, Estate and Gift Tax Planning, Estates and Trusts, Fiduciary Law, Powers of Attorney, Advance Health Care Directives, Real Estate Law, Entity Formation, Civil Litigation
Edward L. Chun
Practice Areas: Real Estate Litigation, Estate and Trust Litigation, Business/General Litigation, Civil Litigation
J. Kenneth Gorman
Practice Areas: Estate and Trust Litigation, Civil Litigation, Construction Defects Litigation, Personal Injury, Business Litigation, Real Estate Litigation, Agricultural Litigation, Fire Damage Claims
Anna M. Penrose-Levig
Practice Areas: Estate Planning, Civil Litigation, Estates and Trusts, Powers of Attorney, Advance Health Care Directives
Practice Areas: Estate Planning, Trust Administration, Probate Litigation, Civil Litigation